MEMORANDUM OF CONSIDERATION

	IN THE CASE OF 

	BOARD DATE:            31 March 1999     
	DOCKET NUMBER:   AR1999023037

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Walter T. Morrison		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Physical disability retirement or separation.  

In effect, the applicant states that his medical treatment during his service was inadequate, that a medical officer prepared a false report in responding to a congressional inquiry, and that his medical conditions were improperly or inadequately diagnosed.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army for four years on 26 August 1981, completed training as a finance specialist, and in January 1982 was assigned to Fort Carson, Colorado.

The applicant’s medical records show that he was treated for injury to his left hip and left side in June of 1982, that he was treated for a shaving rash in September of that year and again throughout 1983 and 1984, treated for nasal congestion in May 1983, for a sore throat in June of 1983, that he was treated for pain to his right knee in August 1983, among treatments for other minor ailments. 

On 23 August 1985 the applicant’s request for voluntary retention on active duty beyond his expiration of term of service (ETS) was approved.  He was placed on convalescent leave on 3 August 1985.  The request was necessary because of his hospitalization and convalescent leave.

In a 5 February 1986 reply to a congressional inquiry, the doctor that he accused of filing a false report, stated that there was essentially no delay in the applicant’s board in August of 1985 for recurring spontaneous pneumothorax.  He was placed in a medical holding company to allow complete recovery from surgery, estimated at four months.  During the last month of the recovery period, the applicant requested a medical board, which was completed on                            11 December 1985.  The doctor stated that he felt that the board was unnecessary because the recovery was complete, although the applicant did have some incisional pain.  The doctor then stated that the applicant wanted to study the board results, misplaced it, and the doctor recovered the original dictation.  He said that the applicant was fully recovered and was fit for duty, that the applicant was in the medical holding company awaiting final disposition on the medical board.  He recommended that the applicant be retained or separated with no disability.

In a 28 February 1986 addendum to a medical board evaluation, the doctor that he accused of filing a false report, stated that the applicant wished to state that he did suffer from pain upon returning from convalescent leave, but he was told that this was incidental in nature and would subsequently improve with time.  That doctor stated that he (the doctor) did not lose the applicant’s board [proceedings], but the applicant did when he gave it to his mother.  The doctor stated that the proceedings were eventually recovered from the medical transcription service.  The doctor stated that the applicant’s condition was unchanged, and that he had sufficiently recovered from his surgery to return to duty with a temporary profile, allowing him to phase back into physical fitness training.  

On 6 June 1986 the Army Military Personnel Center approved the findings of the Physical Evaluation Board (PEB), stating that the applicant was physically fit for active military service, that he had no assignment limitations, and that his records should reflect his physical profile as 1 1 1 1 1 1.

On 3 July 1986 a DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release from Active Duty) stated that he was considered physically qualified for separation with a physical profile of 1 1 1 1 1 1.  The applicant was released from active duty on 3 July 1986 at Fort Carson, Colorado, because of his ETS.  He had 4 years, 10 months, and 8 days of service.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
 
Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 3 July 1986, the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 3 July 1989.

The application is dated 20 October 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__cwb___  __jhk___  ___wtm__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023037	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990331	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.142.00		
2.108.00		
3.		
4.		
5.		
6.